Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 12 CR 2253,
Honorable Paula M. Daleo, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with
opinion. Presiding Justice Connors and Justice Simon
concurred in the judgment and opinion.
1 The defendant-appellant, Kory Alexander, was found guilty
by a jury of first degree murder. However, in a special
interrogatory, the jury found that it had not been proven
that defendant discharged a firearm during the commission of
the offense. The trial court sentenced defendant to 40 years
in prison on the first degree murder conviction.
2 Defendant raises several issues on appeal. Defendant argues
(1) his first degree murder conviction should be set aside
because of the jury's finding on the special
interrogatory, (2) he was denied his right to a fair trial
where the jury instructions implied that he could be guilty
under a theory of accountability even though no
accountability instruction was given, (3) the trial court
committed reversible error when it refused to give
defendant's "mere presence" jury instruction,
and (4) the trial court committed reversible error when it
instructed the jury on motive without first consulting the
3 Based on the record before this court, we affirm
defendant's conviction for first degree murder and find
no errors regarding the trial court's handling of the
jury instructions or the jury's question.
5 On March 7, 2014, a jury found defendant guilty of first
degree murder. On April 1, 2014, he filed a motion for
judgment of acquittal or, in the alternative, a new trial. On
June 6, 2014, the trial court denied defendant's
posttrial motion and sentenced him to consecutive terms of 40
years imprisonment. Defendant timely filed his notice of
appeal on the same day. Accordingly, this court has
jurisdiction pursuant to article VI, section 6, of the
Illinois Constitution and Illinois Supreme Court Rules 603
and 606, governing appeals from a final judgment of
conviction in a criminal case entered below. Ill. Const.
1970, art. VI, § 6; Ill. S.Ct. Rs. 603, 606 (eff. Feb.
7 Around midnight, on November 22, 2011, the victim, Darion
Mason, prepared to take his mother, Denise Mason, to her
work. As the pair walked to the victim's car, Denise
realized she forgot her earrings. She ran back into the house
to retrieve the earrings, and the victim kept walking to his
car. After retrieving the earrings, Denise was approaching
the victim's car when she observed the silhouettes of her
son in the driver's seat and an unknown person in the
back seat. As she opened the door, shots rang out and Denise
realized someone was shooting her son. She heard two gun
shots and screamed "[H]elp my son, he's shooting my
son." The police arrived and arrested defendant not far
from the scene of the shooting. On December 22, 2011, the
defendant was charged with six counts of first degree murder,
two counts of unlawful use of a weapon by a felon, and four
counts of aggravated unlawful use of a weapon.
8 At trial, the State called several responding police
officers to testify as to the night's events. Bellwood
police officer Eddie Morales testified that on November 22,
2011, at approximately midnight, he was on patrol when he
heard two or three gunshots. The gunshots were coming from
south of where he was located. In response, he turned off his
headlights to conceal his vehicle and proceeded to the
intersection of Bellwood Avenue and Jackson Street, which was
approximately 100 feet away from him. Within seconds of
arriving at the intersection, he noticed an individual in all
black clothing wearing a dark hooded sweatshirt running
northbound (toward the officer) on the eastside of Bellwood
Avenue. Officer Morales was approximately 50 to 70 feet away
and did not see anyone else at that time. It appeared to the
officer that the person had something in his right hand.
While the individual was still some distance from the Officer
Morales, he exited his vehicle and demanded the individual
9 The person did not respond and proceeded to turn eastbound
on Jackson Street toward an alley. The person turned
southbound into the mouth of the east alley on the 1000 block
of Bellwood Avenue. Officer Morales drove his vehicle up to
Van Buren Street and made a left-hand turn in an effort to
continue to pursue this individual. He continued eastbound on
Van Buren Street and then parked at the mouth of the alley.
He then traveled on foot eastbound on Van Buren Street to
Bohland Avenue, which is one block east of Bellwood Avenue.
After losing track of the individual, Officer Morales saw the
individual crossing Bohland Avenue. He continued eastbound
until he saw a person cross over the alley. This individual
was physically consistent with the person he had seen
crossing Bohland Avenue. At some point, Officer Morales met
up with other officers on the 1000 block of Linden Avenue
where they detained an individual near the school on that
block. In court, Officer Morales identified the defendant as
the individual being detained. Approximately 5 to 7 minutes
passed between the time when Officer Morales initially heard
the shots and the time that defendant was in custody. During
that time the officer had seen a car drive the wrong way down
Jackson Street but could not identify it.
10 Officer Morales retraced the subject's steps back to
where he initially saw the person and, in doing so,
discovered several items. He found a black hooded sweatshirt
and two gloves on the 1000 block of Bohland Avenue in the
general area where he saw the person running. In the rear of
that residence, he found a black semiautomatic handgun laying
in the yard.
11 Bellwood police officer Scott Guliano testified that he
heard a radio call from Officer Morales. Officer Morales made
a request for additional units, and Officer Guliano responded
immediately. In his marked car, he activated his emergency
lights and sirens while traveling at a high rate of speed
toward the area. He parked his vehicle in an alley just
before Linden Avenue and just off Jackson Street. He exited
his car and began searching for the suspect. At this point,
he was joined by Officer Kevin Barnett, and the two proceeded
to walk down Linden Avenue. As they exited a gangway
approximately three houses in on Linden Avenue, Officer
Guliano saw a black male with a black T-shirt and black jeans
exiting a gangway. The officer's yelled, "Stop"
and "Police." The black male then ran across the
street. Officer Guliano identified the individual as
defendant, Kory Alexander. Defendant was alone that night and
it was only 35 to 38 degrees outside. The officers gave chase
and eventually tackled the defendant near an elementary
12 Monica Hemingway testified that she was parked in front of
her house on Linden Avenue near Jackson Street with her
boyfriend in the early morning hours of November 22, 2011.
The two were parked on the west side of the street. An
elementary school is on the east side of the street. While in
the car, she noticed police officers at different locations
on the block. Monica then noticed an individual who was
peeking out from a walkway on the side of her house. She
described the individual as African-American but could not
see any other features. She could not see his face. She
contacted the police because she believed this person was
trying to conceal himself. The individual then began walking
slowly south on Linden Avenue. The police saw him and told
him to stop. In response to the police's shouts, Monica
saw the individual run but he was caught by police. She did
not see anyone else out that night.
13 Officer Kevin Barnett testified that he was an officer
with the Village of Bellwood and was on routine patrol on the
midnight shift the night of the victim's death. In
response to a radio distress call, he traveled to the
intersection of Jackson Street and Linden Avenue in Bellwood.
Upon arriving, he made contact with Officer Guliano. While
the two were walking, Officer Barnett saw an individual run
out from a gangway. They gave chase and eventually detained
the individual. Prior to coming into contact with Officer
Guliano, Officer Barnett saw a man in a yellow jacket exiting
an apartment building on Linden Avenue. The officer never
obtained any information from the individual because the man
was obese and did not match the description of the individual
for whom they were looking.
14 Officer Shawn Clark was employed with the Village of
Bellwood and was working the midnight shift on November 22,
2011, when he received Officer Morales' radio call.
Officer Clark traveled to the scene of the shooting. Upon
arrival, he observed a Jeep with an open driver's door
and the victim in the driver's seat, feet on the ground,
head back, and unresponsive.
15 Hillside police corporal Michael Duffek testified he was
on routine patrol on November 22 when he responded to the
Bellwood police's call for assistance. Corporal Duffek
was on Linden Avenue when he observed the defendant, run
across Linden Avenue while being chased by other officers. He
observed officers tackle defendant in the grassy area near
the school on Linden Avenue.
16 Master Sergeant Jack Bridson testified that he was
employed by Bellwood police as a master sergeant in
investigations and was called to the scene. He initially
examined the scene where the victim was shot and located
three spent shell casings. He then relocated to 3608 Jackson
Street where additional evidence was located. He collected a
hooded sweatshirt, a leather glove, and a brown glove near
the sweatshirt, which were admitted into evidence. He also
recovered a Hi-Point .40-caliber handgun, which was admitted
17 Detective Randy Bucker was a detective with the Bellwood
Police Department and was on-call when he received an
assignment regarding the shooting. He administered a gunshot
residue test and a buccal swab of defendant. He identified
the shirt and jeans which were taken off of defendant the
morning he was arrested.
18 Dr. James Filkins testified that he performed the autopsy
on the victim. The victim had two gunshot wounds to the left
side of his head. The first bullet entered the skull and
traveled through the brainstem causing death. The second
gunshot entered the scalp; it traveled around the head
between the scalp and the skull before exiting the back of
the head. He could not determine how close the gun was to the
victim's head when it was fired.
19 Dr. Mary Wong, a forensic scientist employed by the
Illinois State Police, testified that she was asked to
perform gunshot residue tests on various items recovered by
the police. She tested the exterior of the two gloves, the
exterior of both sleeves of the hooded sweatshirt, and
defendant's pants for gunshot residue. Samples were also
taken of defendant's hands to analyze for residue. The
tests from defendant's hands were negative, as were the
tests done on the hooded sweatshirt. The test on the leather
glove was negative while the test on the brown glove was
20 Tonia Brubaker, a firearm examiner with the Illinois State
Police, examined the Hi-point handgun recovered from between
the two houses near where the defendant was arrested. She
also examined the bullets recovered from the victim's
body. She concluded that shell casings recovered from the
scene along with one of the bullets from the victim's
body were fired from the recovered gun.
21 Eleanor Giacometti, a forensic scientist with the Illinois
State Police, examined the firearm for latent fingerprints.
She found one latent print located underneath the plastic
grip on the handgun. She had to unscrew the grip to see the
print and could not determine how long it had been there. It
did not match the defendant.
22 Karina Gomez, another forensic scientist for the Illinois
State Police, performed DNA testing. She analyzed DNA samples
from the hooded sweatshirt and the gloves and compared them
to the DNA of the defendant and the victim. The sample from
the sweatshirt revealed a mixture of at least three people.
She was able to extract a major human DNA profile and a minor
human DNA profile. A major DNA profile occurs where one
person deposits more DNA than another and a minor profile is
essentially less DNA than what has been contributed by the
major profile. The major DNA profile did not match either the
defendant or victim's DNA. Gomez ran the major profile
through a DNA database of convicted offenders, missing
persons, relatives of missing persons, unidentified remains,
and Illinois State Police staff members, which revealed an
association between the major profile and a profile in the
database, one Stanley Street. As to the minor DNA profile,
Gomez determined that the defendant could not be excluded
from having contributed to the profile.
23 Gomez was also able to recover DNA samples from both
gloves. As to the cloth glove, the sample contained a mixture
of DNA profiles (though no major or minor ones) from which
defendant could not be excluded. However, the victim was
excluded. As to the sample from the leather glove, she ...